Sexual Interference

Sexual interference involves any form of sexual activity with a person under the age of consent. According to s. 151 of the Criminal Code of Canada, this is a serious offence. The age of consent in Canada is 16 years old, with certain exceptions for close-in-age relationships.

Defining Sexual Interference

Sexual interference refers to any touching of a sexual nature involving a minor under the age of 16. This can include any act where an adult uses their body or an object to make contact with a child’s body for sexual purposes. It is considered a serious crime in Canada and carries heavy penalties.

Age of Consent in Canada

The legal age of consent in Canada is 16 years. Individuals must be at least 16 to legally agree to any sexual activity. Exceptions exist, such as close-in-age exemptions, where teens aged 14 or 15 can consent to sex with a partner less than five years older, but not if the partner is in a position of authority or trust. The close-in-age exception only applies if the younger person is at least 14 years old.

A close-in-age exception also applies to 12 and 13 year olds as long as they consent to sexual activity with a person who is less than two years older than they are and there is no relationship of trust, authority or dependency or any other exploitation of the young person. For example, a 13 year old girl could consent to sexual activity with a 14 year old boy and this would not be a criminal offence.

Direct and Indirect Touching

Direct touching involves physical contact where the perpetrator uses their body to touch the minor. Indirect touching can involve using an object or causing the complainant to touch their own or another person’s body. Both types are criminalized under sexual interference laws, irrespective of consent, as minors are legally incapable of consenting to such acts.

Criminal Proceedings and Charges

Criminal proceedings for sexual interference can involve diverse charges and sentencing outcomes. These depend on several critical legal factors and decisions made during the process.

Types of Charges and Crown Election

Sexual interference consists of various charges. They range from summary conviction charges to indictable offences. The choice between these types is influenced by the Crown election, which determines the severity and manner of prosecution.

Summary conviction charges are less serious offences with lighter sentencing. Indictable offences lead to harsher punishments and tend to be more complex legal proceedings. The decision of which charge to lay significantly impacts the accused’s criminal record and future legal consequences.

Hybrid Offences and Election by the Crown

Sexual interference is a hybrid offence. This status allows the Crown to elect whether to proceed summarily or by indictment. The decision hinges on various factors, such as the case’s specifics and the accused’s history. If the offence occurred more than one year before the proceedings are brought against an accused, the crown is required to elect by indictment. For example, where the police arrest an accused and lay information for an historical sexual interference charge which occurred say 2 years ago, the crown must elect by indictment as set out in s. 786 of the Criminal Code.

If the Crown proceeds summarily, the case usually results in quicker resolutions and less severe penalties. If the crown elects by indictment, the process tends to involve more rigorous procedures and potential for harsher sentences. The Crown’s election shapes the trajectory and eventual outcome of the case.

Pleading and Available Sentencing Options

The nature of the plea entered by the accused affects the sentencing process significantly. An accused can plead guilty or not guilty, influencing how the court proceeds. A guilty plea may lead to a reduced sentence, reflecting the accused’s willingness to accept responsibility which saves the victim the psychological trauma of testifying at a trial. A judge is required to give the accused at least some credit for pleading guilty versus proceeding to trial.

Sentencing options for sexual interference are severe and a judge has limited discretion other than deciding the length of the jail term the accused will be sentenced to. Incarceration options set out in s. 151 and detailed in Part XXIII of the Criminal Code vary in duration based on the seriousness of the offence and the offender’s background.

The limited sentencing options always involve jail and reflect the severity of this type of offence and society’s abhorrence for this type of crime. If the crown elects to proceed summarily, there is a mandatory minimum 90 day jail term up to a maximum 2 years less a day. If the crown elects to proceed by indictment, there is a mandatory minimum 1 year jail term and a maximum of 14 years in the penitentiary.

The mandatory minimum jail terms are reserved for only the most minor offences. Most convicted offenders will receive much more than the mandatory minimum jail term depending on the severity of the offence. A prison term coupled with up to 3 years probation is possible if the sentence is under 2 years. Probation is not possible for cases where the offender is sentenced to a penitentiary term of 2 years or more.

An intermittent sentence under s. 732 of the Criminal Code (i.e., a jail term served on the weekends) is possible if the crown elects to proceed summarily and the accused receives only the mandatory minimum 90 day jail term. However, intermittent sentences are becoming increasingly difficult to obtain in most counties in Ontario for any type of offence, let alone for sexual interference convictions. An intermittent sentence is not available if the crown elects by indictment because intermittent sentences are not available for jail terms over 90 days.

A conditional sentence of house arrest is not available as set out in s. 742.1 because house arrest is not possible for charges that carry mandatory minimum jail terms. Discharges under 730 or suspended sentences under 731(1)(a) are also not available sentencing options.

A judge will also make various mandatory or discretionary ancillary prohibition orders designed to prevent further offences. These prohibition orders include firearms prohibition orders under s. 109, weapons forfeiture orders under s. 491 and discretionary s. 161 prohibition orders (i.e., which prohibit an offender from attending public parks, swimming areas, daycare centres, school grounds, playgrounds or community centres, no employment that involves being in a position of trust or authority towards persons under the age of 16 years old, no contact with the victim, no contact with children under 16 unless supervised and restrictions on using the internet or other digital networks).

Additionally, offenders will face mandatory registration on the National Sex Offender Registry (i.e., SOIRA orders) and mandatory DNA orders to provide a sample of their blood or saliva to be added to the Canadian DNA databank.

 

 

Common Legal Defences to Sexual Interference Charges

Many accused defend themselves on the basis that they deny the allegations and will proceed to trial to attempt to establish a reasonable doubt and secure an acquittal. By pleading not guilty, they are essentially requiring the Crown to “prove it” in the hope of creating a reasonable doubt and securing a not guilty verdict or an acquittal.

Another defence is that the touching was not done for a sexual purpose (i.e. accidental or non-sexual contact) such as a parent properly bathing their 2 year old child. The Courts will consider the circumstances and intent behind the action to determine whether there was a sexual purpose or whether the touching was accidental. The accused’s intent is the issue for this type of defence.

Another defence is where an accused has an honest but mistaken belief regarding the age of the complainant. If the accused genuinely and reasonably believed the complainant was of legal age to consent to sexual activity, this is a valid defence which could lead to a dismissal of the charge. However, under s. 150.1(4) of the Criminal Code, an honest but mistaken belief in age is not a defence unless the accused took all reasonable steps to determine the age of the complainant.

The Right to a Criminal Defence Lawyer

Any individual accused of sexual interference has the right to be represented by a criminal defence lawyer. A criminal lawyer can explain the charges, assess the strength of the evidence, and develop a defence strategy.

Seeking a lawyer experienced in sexual interference cases is crucial. They can challenge evidence, cross-examine witnesses, argue for the exclusion of improperly obtained evidence or advocate for a lenient sentence.

Having legal representation ensures the accused understands their rights and the judicial process, potentially leading to a more favourable outcome.

Charter Rights

Charter Rights protect the accused in a sexual interference case. These rights include the right to silence, protection against unreasonable search and seizure, the right to counsel, presumption of innocence and the right to a fair trial.

A criminal defence lawyer can argue that evidence obtained in violation of the Charter should not be used in court. This could include search and seizure issues, evidence gathered without a proper search warrant, right to counsel violations, or excluding involuntary or coerced confessions.

The Charter guarantees the right to be tried within a reasonable time. Excessive delays in the legal process can be contested, potentially leading to charges being stayed if it is proven that the delay was unreasonable. When a charge is “stayed” for s. 11(b) Charter delay, it means the charges are paused indefinitely. The charges are effectively dropped, and the case is considered closed.

 

 

Penalties and Sentencing

Penalties for sexual interference vary widely and include mandatory incarceration and mandatory minimum sentences. Factors such as a prior criminal record and the presence of mitigating or aggravating circumstances play crucial roles in determining the length of a jail term.

Mandatory Minimum Sentences

In Canada, sexual interference charges come with mandatory minimum sentences. These minimums are set by law and judges are required to enforce them regardless of circumstances.

Minimum punishments for sexual interference include:

• Incarceration: At least a one year jail term for indictable offences.
• Less severe cases: A mandatory minimum of 90 day term of imprisonment for summary convictions.

Aggravating and Mitigating Factors

Aggravating factors can lead to harsher penalties. These include:

• The severity and duration of the sexual touching
• The young age and vulnerability the complainant such as a baby
• Multiple offences against the victim by the perpetrator
• Evidence of mens rea, or intent behind the act.
• Where the accused has a prior criminal record especially for violent or sexual crimes

Conversely, mitigating factors can reduce the severity of the sentence. These might include:

• Pleading guilty at an early opportunity
• No prior criminal record.
• Genuine remorse
• Genuine rehabilitation efforts including counselling
• Age difference between the accused and the victim (there is a big difference between a 15 year old victim and 20 year old accused who is say two days outside the 5 year close-in-age exemption, versus a 15 and 40 year old victim and accused)

Judges evaluate both types of factors thoroughly to determine the appropriate sentence.